No. 05-370
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 120
STATE OF MONTANA,
Plaintiff and Respondent,
v.
KERRY ANN SCHWARZ,
Defendant and Appellant.
APPEAL FROM: The District Court of the Twentieth Judicial District,
In and For the County of Sanders, Cause No. DC-04-11,
Honorable Deborah Kim Christopher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Carolyn Gill, Gill Law Office, Plains, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; C. Mark Fowler,
Assistant Attorney General; Helena, Montana
Robert Zimmerman, County Attorney, Thompson Falls, Montana
Submitted on Briefs: April 5, 2006
Decided: May 31, 2006
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Kerry Ann Schwarz pled guilty in the Twentieth Judicial District Court to criminal
possession of dangerous drugs, a felony in violation of § 45-9-102, MCA. The
dispositive issue on appeal is whether the District Court correctly determined that law
enforcement had legal authority to search Schwarz’s home after her thirteen-year-old
daughter provided the officers permission to enter when Schwarz was not home?
¶2 We reverse.
BACKGROUND
¶3 On February 27, 2004, Sanders County Deputy Sheriff Joe Brown enlisted the
assistance of Thompson Falls City Police Officer Chris Nichols in arresting Jonathan
Lowe. After Officer Nichols learned that Lowe was staying at the defendant’s residence
in Thompson Falls, the two officers, along with Reserve Deputy Bronner, drove to
Schwarz’s home to effect an arrest. Brittany Glazier, Schwarz’s thirteen-year-old
daughter, who had just arrived home from the movies with two girlfriends, answered the
door. The three friends had been watching a video while waiting for one girl’s ride
home; the other friend had permission to spend the night at Brittany’s house. Brittany
testified that she did not recognize either of the officers, although, apparently she had met
Officer Brown at a Girl Scout event. Officer Brown explained to Brittany, whom he
believed to be either thirteen or fourteen years old, that he was looking for Lowe. The
record is in dispute as to whether Brittany invited the officers to search the home, or
whether the officers directly asked permission to enter. Either way, the officers entered
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with Brittany’s consent. No one made an effort to contact Schwarz; nor did law
enforcement obtain a search warrant.
¶4 During the course of the search, Officer Nichols discovered a marijuana pipe and a
small plastic container containing a white substance, later determined to be
methamphetamine. At some point, Schwarz, who was out bowling, called home and
learned of the officers’ presence. She immediately drove home. Upon Schwarz’s arrival,
Officer Nichols indicated that he had discovered drugs. Schwarz admitted to owning the
pipe and marijuana and provided written consent to another search of the entire house.
Officer Nichols arrested Schwarz and drove her to the police station, obtaining further
admissions from Schwarz along the way.
¶5 Schwarz filed a motion to suppress the evidence and statements obtained by the
officers, arguing that law enforcement illegally searched her home in violation of Article
II, Sections 10 and 11 of the Montana Constitution. After hearing testimony on the
motion, the District Court denied it, noting that because Brittany and her friend were
home alone on a Friday night, “all the parents had confidence in these girls to exercise
good judgment.” Schwarz entered a conditional plea preserving her right to appeal the
suppression issue.
STANDARD OF REVIEW
¶6 The standard of review of a district court’s denial of a motion to suppress is
whether the court’s findings of fact are clearly erroneous and whether those findings were
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correctly applied as a matter of law. State v. McLees, 2000 MT 6, ¶ 9, 298 Mont. 15, ¶ 9,
994 P.2d 683, ¶ 9.
DISCUSSION
¶7 Did officers have legal authority to search Schwarz’s home based on consent
from Schwarz’s thirteen-year-old daughter?
¶8 Since Article II, Section 11 of the Montana Constitution mirrors the Fourth
Amendment to the United States Constitution, we analyze most search and seizure issues
by applying traditional federal principles. McLees, ¶ 23. Unlike its federal counterpart,
however, Montana’s constitutional scheme affords citizens broader protection of their
right to privacy. See Article II, Section 10. In Montana, therefore, we analyze search
and seizure issues in light of our citizens’ enhanced right to privacy. McLees, ¶ 28.
¶9 In McLees, ¶ 10, this Court noted that “[w]arrantless searches conducted inside a
home are per se unreasonable, subject only to a few specifically established and well-
delineated exceptions.” (Citations omitted.) One such exception is a search conducted
pursuant to a consent given freely and voluntarily. McLees, ¶ 10. We have previously
cited the United States Supreme Court’s decision in United States v. Matlock (1974), 415
U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 249-50, for the proposition that “when
the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is
not limited to proof that consent was given by the defendant, but may show that
permission to search was obtained from a third party who possessed common authority
over or other sufficient relationship to the premises or effects sought to be inspected.”
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(Emphasis added.) See McLees, ¶ 10, and State v. Sorenson (1979), 180 Mont. 269, 275,
590 P.2d 136, 140. The Matlock court specifically clarified that “common authority”
does not necessarily flow from mere property interest.
The authority which justifies the third-party consent does not rest upon the
law of property, with its attendant historical and legal refinements, but rests
rather on mutual use of the property by persons generally having joint
access or control for most purposes, so that it is reasonable to recognize that
any of the co-inhabitants has the right to permit the inspection in his own
right and that the others have assumed the risk that one of their number
might permit the common area to be searched.
Matlock, 415 U.S. at 171, n.7, 94 S.Ct. at 993, n.7, 39 L.Ed.2d at 250, n.7.
¶10 A decade and a half after the Matlock decision, the Supreme Court addressed the
issue of apparent authority in Illinois v. Rodriguez (1990), 497 U.S. 177, 186, 110 S.Ct.
2793, 2800, 111 L.Ed.2d 148, 159-60, concluding that “[b]ecause many situations which
confront officers in the course of executing their duties are more or less ambiguous, room
must be allowed for some mistakes on their part. But the mistakes must be those of
reasonable men, acting on facts leading sensibly to their conclusions of probability.”
(Citation omitted.) In McLees, ¶ 32, this Court explicitly rejected the Rodriguez holding,
“refus[ing] to extend the doctrine of apparent authority based on . . . [Montana’s]
increased right to privacy under Article II, Sections 10 and 11.” We held “that for third-
party consent to be valid as against the defendant, the consenting party must have actual
authority to do so.” McLees, ¶ 32 (emphasis added).
¶11 The question now before this Court is whether a third-party youth can provide
legal consent to a search. Several courts have addressed this issue, with the majority
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concluding that “there is no per se rule that all minors lack the authority to consent to a
search.” Abdella v. O’Toole (D. Conn. 2004), 343 F.Supp.2d 129, 135. Typically, the
consenting party’s youth will be one of many factors considered when the trier of fact
analyzes the legality of a minor’s consent. See State v. Tomlinson (Wis. 2002), 648
N.W.2d 367, 376 (“[w]hether the child possesses such authority will depend on a number
of factors, and courts must look at the totality of the circumstances to make such a
determination”); State v. Butzke (Neb. App. 1998), 584 N.W.2d 449, 458 (the court must
analyze voluntariness and common authority over the premises, or whether law
enforcement reasonably believed the child had apparent authority); State v. Kriegh (Kan.
App. 1997), 937 P.2d 453, 457 (“[a]lthough age is a factor to consider in ascertaining
whether consent was given willingly, minority status alone does not prevent one from
giving consent”); State v. Will (Or. App. 1994), 885 P.2d 715, 720 (“age is merely one
factor to be considered in determining the scope of the minor’s authority to consent and
whether the minor’s consent was knowing and voluntary” (citation omitted)); Saavedra v.
State (Fla. 1993), 622 So.2d 952, 956 (“the State must show by clear and convincing
evidence from the totality of the circumstances that the minor gave free and voluntary
consent”); Davis v. State (Ga. 1992), 422 S.E.2d 546, 549 (a court must “examine a
child’s mental maturity and his ability to understand the circumstances in which he is
placed, and the consequences of his actions”); and People v. Jacobs (Cal. 1987), 729 P.2d
757, 764 (“[a]s a child advances in age she acquires greater discretion to admit visitors on
her own authority”).
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¶12 In addressing this issue, we recognize that other jurisdictions have chosen not to
create a per se rule that all youths lack the authority to consent to a search. However, just
as we chose not to adopt Rodriguez’s apparent authority doctrine in light of Montana’s
greater right to privacy, so too do we now opt not to march in step with our sister states
and the federal courts on the issue of minor consent. Importantly, several of their
decisions incorporated the doctrine of apparent authority. Since this Court has explicitly
rejected that doctrine, we need only address the narrower question of whether a youth has
actual authority to consent to a search of her parent’s home. We hold that she does not.
¶13 In reaching this conclusion, we observe that in general, a youth does not have
authority equal to that of a parent or guardian regarding their shared property. As the
Supreme Court of Wisconsin noted, “[a] minor child who lives in the same home with his
or her parents or guardians obviously shares use of the property with the parents or
guardians to some extent. However, it should also be obvious that a child generally does
not share mutual use of the property with a parent to the same extent that such use might
be shared between spouses or between cohabitating adults.” Tomlinson, 648 N.W.2d at
376. Similarly, the Supreme Court of California opined that even if a parent chooses to
grant her minor children joint access and mutual use of the home, “parents normally
retain control of the home, as well as the power to rescind the authority they have given.”
Jacobs, 729 P.2d at 763. The California court further observed that a parent has not
surrendered the privacy of his home to the discretion of a child, but rather, the child has
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privacy at the discretion of the parent. In other words, “a child cannot waive the privacy
rights of her parents.” Jacobs, 729 P.2d at 763.
¶14 We agree with the above comments and further conclude that in light of
Montana’s enhanced right to privacy under Article II, Section 10, consent, as an
exception to the warrant requirement, must be narrowly construed. Accordingly, we hold
that a youth under the age of sixteen does not have the capacity or the authority to
relinquish her parents’ privacy rights. We find further persuasive authority for this
conclusion in the Legislature’s enactment of § 41-5-331(2), MCA, which states that a
youth under the age of sixteen can only waive her right against self-incrimination with
parental permission or with the advice of counsel. Although § 41-5-331, MCA, only
addresses a youth’s constitutional right against self-incrimination, it nonetheless supports
the principle that a minor who cannot waive her own rights without parental permission
or legal counsel, cannot waive her parent’s privacy rights. See State v. Allen (1980), 188
Mont. 135, 612 P.2d 199, involving § 41-5-303, MCA 1 (which referenced all
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Section 41-5-303, MCA (1980), read:
When a youth is detained for investigation or questioning upon a
matter which could result in a petition alleging that the youth being
detained is either delinquent or in need of supervision, the following
requirements must be met:
(1) The youth shall be immediately and effectively advised of his
constitutional rights and his rights under this chapter.
(2) The youth may waive such rights under the following situations:
(a) when the youth is under the age of 12 years, the parents of the
youth may make an effective waiver;
(b) when the youth is over the age of 12 years and the youth and his
parents agree, they may make an effective waiver; and
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“constitutional rights”), the predecessor to § 41-5-331, MCA, wherein we held that a
sixteen-year-old youth could not, without the agreement of her parents or advice of
counsel, consent to a search of her own apartment. Accordingly, we now adopt a per se
rule that a youth under the age of sixteen lacks the capacity or the authority to consent to
a search of her parents’ home.
¶15 Reversed and remanded for further proceedings consistent with this opinion.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
(c) when the youth is over the age of 12 years and the youth and his
parents do not agree, the youth may make an effective waiver only with
advice of counsel.
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